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Louis Heimbach, Individually and as County Executive of Orange County, on Behalf

of All Persons in Orange County Liable for the Payment of Sales and Use Taxes, et
al., Respondents-Appellants, v. State of New York et al., Appellants-Respondents,
and Warren M. Anderson, as Temporary President and Majority Leader of the New
York State Senate, Intervenor-Appellant-Respondent


Supreme Court of New York, Appellate Division, Second Department

89 A.D.2d 138; 454 N.Y.S.2d 993; 1982 N.Y. App. Div. LEXIS 17981

October 18, 1982

PRIOR HISTORY: [***1] Appeals (1) from a which was passed by the Senate with the minimum
judgment of the Supreme Court at Special Term (Irving number of affirmative votes required by the State
A. Green, J.), entered March 24, 1982 in Orange County, Constitution pursuant to a "fast" roll call during which
which declared that chapter 485 of the Laws of 1981 did one of the affirmative votes recorded was that of a
not become a law and was without force and effect, and Senator who had himself designated as present by the
(2) from an order of said court, entered March 17, 1982, Clerk of the Senate but was a hospital patient at the time
which denied plaintiffs' application for class action of the vote, was validly enacted; there is an unwritten
certification. custom in the Senate for a member to arrange for an
excused appearance through the office of the Minority
Heimbach v State of New York, 113 Misc 2d 189,
Leader and although the Senator informed the Minority
Leader that he had registered with the clerk and the
Minority Leader agreed to arrange to have the Senator
DISPOSITION: Judgment of the Supreme Court,
marked "excused", he neglected to do so. Courts may
Orange County, dated March 24, 1982, reversed, on the
not impeach the validity of a law by showing that in its
law, without costs or disbursements, plaintiffs' motion
enactment some form or proceeding has not been
for summary judgment on their third cause of action is
properly followed or adopted by the Legislature, since
denied, defendants' cross motion for summary judgment
judicial review of every internal dispute between the
is granted and it is declared that chapter 485 of the Laws
members of the Legislature would frustrate the
of 1981 was validly enacted and that it complies with the
legislative process and violate the constitutional principle
equal protection clause of the Federal Constitution.
of separation of powers.
Appeal by plaintiffs from an order of the same court,
Taxation -- Sales and Use Taxes
dated March 17, 1982, dismissed as academic, without
costs or disbursements. 2. Chapter [***3] 485 of the Laws of 1981, which
increases by one quarter of one percent the sales and
compensating use tax of the State within the
HEADNOTES Metropolitan Commuter Transportation District
(MCTD), a 12-county area served by the Metropolitan
Legislature -- Judicial Review of Internal
Transportation Authority, is a constitutional exercise of
the taxing authority of the Legislature, and allegations of
1. Chapter 485 of the Laws of 1981, which increases disproportionate benefits received by the residents of
by one quarter of one percent the sales and compensating Orange and Suffolk Counties, two of the counties in the
use tax of the State within the Metropolitan [***2] MCTD, do not demonstrate that the tax scheme does not
Commuter Transportation District, a 12-county area pass constitutional muster.
served by the Metropolitan Transportation Authority, and
Page 2
89 A.D.2d 138, *; 454 N.Y.S.2d 993, **;
1982 N.Y. App. Div. LEXIS 17981, ***

COUNSEL: Robert Abrams, Attorney-General (Richard Fourteenth Amendment of [*140] the United States
G. Liskov, Daniel Kaplan, Dennis H. Allee, Peter H. Constitution" with respect to both Orange County (first
Schiff and George D. Zuckerman of counsel), for cause of action) and Suffolk County (second cause of
appellants-respondents. action).
Plaintiffs moved for summary judgment on the third
James G. Sweeney, County Attorney, for respondents-
cause of action and defendants cross-moved for summary
judgment dismissing the complaint in its entirety, inter
alia, for failure to state a cause of action. Special Term
John F. Haggerty (William Y. Crowell, III, of counsel),
(113 Misc 2d 189) held that on the facts in this case, the
for intervenor-appellant-respondent.
assent of Senator Nolan on a "fast" roll call contravened
the mandatory proscription of the State Constitution with
JUDGES: Titone, J. P., Gibbons, Weinstein, Gulotta and
respect to the passage of a bill, granted the plaintiffs'
Thompson, JJ., concur.
motion and declared that the said chapter of the Laws of
1981 had not become a [***6] law. The defendant's
cross motion was denied as moot, and Special Term did
not reach the other constitutional issues sought to be
raised. Defendants now appeal from the judgment at
Special Term and plaintiffs appeal from an order which
denied their application for class action certification.
[**994] Chapter 485 of the Laws of 1981 1 (Senate This court has granted the application of Warren M.
Bill 1905; Assembly Bill 9059) increases by one quarter Anderson, as Temporary President and Majority Leader
of 1% the sales and compensating use tax of the State of the Senate, for leave to intervene as a defendant-
within [***4] the Metropolitan Commuter appellant.
Transportation District (MCTD), a 12-county area served
The judgment should be reversed. On the facts as
by the Metropolitan Transportation Authority (MTA).
set forth in this record, chapter 485 of the Laws of 1981
Orange and Suffolk Counties are included in the MCTD
was validly enacted into law. We also reject the other
( Public Authorities Law, § 1262).
challenges raised by the plaintiffs to the validity of this
chapter. In light of this determination, plaintiffs' appeal
1 Chapter 485 of the Laws of 1981 is codified as
from the order denying class certification is academic.
section 1109 of the Tax Law.
Initially, we observe that while "in general the courts
As recorded in the Journal of the Senate, Senate Bill
will not interfere with the internal procedural aspects of
1905 was passed by that body with the minimum number
the legislative process, judicial review may be
of affirmative votes required by the State Constitution
undertaken to determine whether the Legislature has
(NY Const, art III, § 14). The voting procedure
complied with constitutional prescriptions [**995] as to
employed is known as the "fast" roll call, and one of the
legislative procedures ( Norwick v Rockefeller, 33 NY2d
affirmative votes recorded is that of Senator Howard
537; Matter of Schneider v Rockefeller, 31 NY2d 420;
Nolan. It is not disputed that when the vote was taken,
[***7] Finger Lakes Racing Assn. v New York State Off-
Senator Nolan was a patient in the hospital being
Track Pari-Mutuel Betting Comm., 30 NY2d 207, 219-
prepared for elective surgery. The bill was certified as
220; People v Devlin, 33 NY 269; Franklin Nat. Bank of
passed on July 8, 1981 by the Speaker of the Assembly
Long Is. v Clark, 26 Misc 2d 724)." ( Matter of Board of
and the Acting President of the Senate. It was approved
Educ. v City of New York, 41 NY2d 535, 538.)
by the Governor on July 11, 1981 and became effective
on September 1, 1981. Howard Nolan, who has been a member of the State
Senate since January 1, 1975, was scheduled to undergo
2 31 of the 60 members of the State Senate. elective surgery on July 9, 1981. On the morning of July
8, [*141] 1981, he entered the Senate chamber and had
[***5] In this action by the County Executives of
himself designated as present by the clerk of the Senate.
Orange and Suffolk Counties against the State of New
Later in the day, he left the Senate without informing the
York and James H. Tully, Jr., as the Commissioner of the
clerk, first going home and then to the hospital. At some
New York State Tax Commission, the third cause of
time during that day, Assembly Bill 9059, which
action seeks a judgment declaring that chapter 485 of the
provides for a quarter of one percent increase in the sales
Laws of 1981 is not a duly enacted law of the State of
and compensating use tax in the MCTD, was passed by
New York. The plaintiffs also seek a declaration that the
the Assembly and forwarded to the Senate as part of a
tax scheme created by chapter 485, in its operation and
package of tax bills designed to improve transportation
effect, "[violates] the Equal Protection Clause of the
Page 3
89 A.D.2d 138, *; 454 N.Y.S.2d 993, **;
1982 N.Y. App. Div. LEXIS 17981, ***

in the district. During the early morning hours of July 9, chamber at some point during a session day. However, *
while Senator Nolan was in the hospital, a vote was * * a senator's presence in fact as opposed to his above
taken on Assembly Bill 9059 (Senate Bill 1905) by described designated presence is not necessary for his
means of the "fast" roll call. According to the entry in the vote to be cast, in most cases.
Senate Journal, the Senate voted 31 to [***8] 26 in
[**996] "5. Under the rules of the senate, voting on
favor of the bill, with three Senators "excused". The vote
the final passage of bills may take place under one of two
of Senator Nolan is included among the 31 "Aye" votes,
methods -- a fast or slow roll call (Rule VIII, § 6). On a
which is the minimum number of votes required for
fast roll call, a vote is taken by calling the names of five
senators, including the Temporary President, the
Our State Constitution requires that no bill "shall * * Minority Leader and three others usually the first and last
* be passed or become a law, except by the assent of a two senators on the alphabetically arranged senate roll
majority of the members elected to each branch of the call list. What is particularly important to note under the
legislature" (NY Const, art III, § 14), but the Constitution fast roll call method of voting is that under a long
has prescribed no method of determining the assent of a established senate custom, a senator who has had his
majority (cf. United States v Ballin, 144 U.S. 1, 6). presence designated by the clerk of the senate, as
Section 9 of article III of the Constitution vests in each described in '4' above, need not be in the chamber to
house of the Legislature the power to determine the rules have his or her vote counted in the affirmative. In other
of its own proceedings. In the exercise of that power, the words, a senator who has had himself or herself marked
Senate has adopted rules VIII (§ 6) and IX (§ 1) which present will be deemed to be voted in the affirmative on
provide: TSenate Rule VIII, Passage of bills: any particular vote even if in fact he or she is in his or
her office or elsewhere at the time the vote occurs. To
"6. Final Passage. The question on the final passage
vote in the negative, however [***11] a senator must be
of every bill shall be taken immediately after the third
in the chamber and indicate a negative vote by a show of
reading and without debate. On the final passage of
every bill, a roll call shall be taken by the Secretary
calling the names of five Senators, two of whom shall be [*143] "6. This practice is not followed in a slow
the Temporary President and the Minority Leader, roll call. Here, after five senators have stood to request
provided however, that each Senator's name shall be this voting process, each of the sixty senator's [sic]
called if requested [***9] by five Senators. Each roll names are called, and only those members answering
call shall be entered on the journal. Such roll calls shall 'aye' or 'nay' to their names are recorded as having voted.
be available for public inspection upon request in the Those members not responding when their names are
office of the Journal Clerk. When a bill does not receive called are recorded as having not voted on the measure
the number of votes required by the Constitution to pass despite the fact that they may have already been
it, it shall be declared lost, except in cases [*142] designated present for that day's senate session (See Rule
provided for by subdivision d of section two of Rule 9 8, Sec. VI [sic]) * * *
"11. Under the rules of the senate a senator who has
Senate Rule IX, Senators: not had himself designated as present (See paragraph 4
above) is recorded as absent on every roll call vote
"Section 1. Attendance and Vote.
unless such absence has been excused by the senate.
"a. Every Senator shall be present within the Senate Once a senator is present as described above he or she is
Chamber during the sessions of the Senate, unless duly voted on each fast roll call vote, present in fact or not,
excused or necessarily prevented, and shall vote on each unless excused by the senate (Rule 9, Sec. 1 [sic]). The
question stated from the Chair unless excused by the normal practice for excusing a senator who has had
Senate, or unless he has a direct personal or pecuniary himself designated as present and then who wants to
interest in the event of such question. If any Senator leave is for that member or another member to rise and
refuses to vote, unless he be excused by the Senate, or request of the senate to excuse [***12] him or her from
unless he be interested, such refusal shall be deemed a voting on further items, which such excuse is generally
contempt." accepted by the majority without objection. In the case
of excusing someone who has not had himself designated
The Senate voting procedures are described by
as present, the clerk is generally notified of the requested
Senate Minority Leader Manfred Ohrenstein as follows:
excused absence by my staff at the end of a session and
"4. To vote for the passage of a bill a senator must the senate approves it or not on the following day when it
be present on the day the particular vote is taken. approves the preceeding [sic] day's journal."
Presence is established under the senate rules and
customs by a senator's physical entry into [***10] the
Page 4
89 A.D.2d 138, *; 454 N.Y.S.2d 993, **;
1982 N.Y. App. Div. LEXIS 17981, ***

According to the intervenor, Senator Anderson, words, I could choose not to ask that a senator be
97.9% (1,954 of a total of 1,995) of all bills voted on in excused in which case if a senator was not able to have
1981 "passed on a fast roll call vote." himself or herself excused in the manner described above
he or she would be considered absent for votes if he or
Senator Nolan stated in his affidavit in support of
she had not checked in and as voting in the affirmative
plaintiffs' motion for summary judgment on the third
on fast roll calls if he or she had checked in * * *
cause of action, that "for at least the past seven years
while I have been a member of the New York State [*145] "I acknowledge that Senator Nolan called
Senate, it has been the custom, and still is the custom in me on the [***15] evening of July 8, 1981 to discuss his
the Senate on the Minority side, to arrange for an pending hospitalization. I have however no recollection
excused appearance through the office of the Minority whatsoever of any request that he be excused. Moreover,
Leader, i.e., Senator Manfred Ohrenstein. I have used even had this request been made, as alleged, it would
this procedure on several occasions in the past and have have had no effect on the casting of Senator Nolan's
never questioned the same, relying on tradition and votes. The reason for this is that at that time I was under
custom." In "accordance with custom", he claims that he the clear impression that Senator Nolan was absent that
informed Senator Ohrenstein in person, the previous day and therefore not voting on any issue. Thus, even if
[***13] week, that he was entering the hospital [*144] I had knowledge of this request it would have only meant
the night of July 8 to undergo elective surgery. After he to me that he wanted his absence to be considered an
left the Senate on July 8, he received a telephone call at excused absence and not that he wanted his status as
home from Senator Ohrenstein's administrative assistant 'present' to be converted to the status of 'excused
who informed him that there would probably be a vote absence'. At best, then, my staff would have informed
later that evening on the subject package of bills and that the journal clerk of the request at the end of the session --
his presence was needed because the vote on several of after the vote complained of had occurred." Noting that
the bills was likely to be close. In Senator Nolan's of "the eight bills relating to the MTA six * * * were
words: "Senator Ohrenstein came to the phone and I passed by fast roll call and two * * * by slow roll call",
reminded him of our conversation of the previous week, Senator Ohrenstein asserted that "Senator Nolan who
which he acknowledged and said that he had forgotten was not in the chamber at the time was properly recorded
about the fact that I was entering the hospital. I also in the affirmative on the six (6) fast roll call votes and as
reminded him that I had told him previously that I would not voting (slash through his name) on the two slow roll
not help his cause in any event, as I would have [**997] calls."
voted against all of the proposed taxing measures if I
In a supplemental affirmation, [***16] Senator
were present, and would probably speak against some of
Ohrenstein claimed that under the Senate rules, "the
them, which was obviously a position contrary to that of
challenged roll call accurately reflects the vote on the
the Democratic leadership in the Senate. Senator
MTA sales tax", and added "This conclusion is not in
Ohrenstein acknowledged my previous conversation
any way affected by whether or not Senator Nolan
concerning my hospitalization, wished me good luck,
requested that I have him excused. As I stated in my
and personally assured me that I would be marked
supporting affirmation, despite my inclination to honor
'excused because of being in the hospital' for any [***14]
such request, I have no legal obligation to do so and even
votes taken that evening or on the following day."
if I were to do so, that would not guarantee that the
Senator Ohrenstein responded: Senate would accept such request. Moreover * * * even
if I had been cognizant of the request, which I was not,
"The crux of plaintiff's [sic] argument however
and inclined to honor it, given this particular situation, I
appears to revolve around Senator Nolan's allegations
would have understood such a request not as one asking
that he attempted to have his designation as 'present'
that a 'present' Senator be excused but that an 'absent'
converted to an excused absence by making this request
senator have such absence be characterized as 'excused'."
of me by telephone sometime in the evening of July 8,
1981 * * * Before Special Term, the plaintiffs admitted that:
"For purposes of this motion, it will be conceded that for
"[From] a legal perspective, assuming the accuracy
Senators in presence and making up part of the quorum
of Senator Nolan's recollection, any request to be
which allows the Senate to proceed in the first place, a
excused that he might have made of me does not in any
failure or [*146] refusal to vote for whatever reason,
way insure that such designation would be forthcoming.
including perhaps an abstention will be deemed as a vote
Moreover, there is no legal obligation on my part to even
in [**998] favor of the measure before the Senate. A
convey his request to the senate, although as matter of
Senate Rule of custom [***17] so provides." The
senate courtesy and leadership responsibility, any such
plaintiffs contended, however, that such was not the case
reasonable request would generally be honored. In other
here, since Senator Nolan was not in presence and did
Page 5
89 A.D.2d 138, *; 454 N.Y.S.2d 993, **;
1982 N.Y. App. Div. LEXIS 17981, ***

not make up part of the quorum which allowed the custom, a Senator's presence is established by his actual
Senate to act on the bill in the first place. entry into the chamber at some point during a session
day and having himself marked present by the clerk of
The Constitution provides that "[a] majority of each
the Senate. Thereafter, his presence is presumed to
house shall constitute a quorum to do business" (NY
continue unless he requests that he be excused or informs
Const, art III, § 9). The Senate rules require every
the clerk of his departure.
Senator to be "present" and to "vote" (rule IX, § 1).
Section 2 of rule IX pertinently provides: The Senate rules and custom are a reasonable and
practical interpretation of the constitutional requirement
§ 2. Quorum.
(cf. United States v Ballin, 144 U.S. 1, 5-6, supra);
"a. A majority of all the Senators elected shall People ex rel. Hatch v Reardon, 184 NY 431, 442). As
constitute a quorum to do business. In case a less the plaintiffs concede in their brief, under general
number than a quorum of the Senate shall convene, those principles of parliamentary law there is a presumption
present are authorized to send the Sergeant-at-Arms, or that Senators present in the chamber and not recorded as
any other person, for the absent Senators * * * voting are presumed to have voted in the affirmative (see
59 Am Jur 2d, Parliamentary Law, § 9, p 325, n 12; 43
"f. If at any time during the session of the Senate a
NY [***20] Jur 2d, Parliamentary Law, § 14, p 24, n
question shall be raised by any Senator as to the presence
20; 67A CJS, Parliamentary Law, § 8, p 620; Cowan v
of a quorum, the Presiding Officer shall forthwith direct
New York Caledonian Club 46 App Div 288).
the Secretary to call the roll, and shall announce the
result, and such proceeding shall be without debate; but [**999] Senator Nolan was scheduled to enter the
no Senator while speaking shall be interrupted by any hospital on July 8, 1981 for elective surgery to be
other Senator raising the question of a lack of a quorum, performed the next day. On July 8, he had himself
and the question as to the presence of a [***18] quorum designated as "present" by the clerk of the Senate and left
shall not be raised oftener than once in every hour unless some time later in the afternoon without asking to be
the lack of a quorum shall be disclosed upon a roll call of excused, as the rules provide, and without informing the
the ayes and nays. clerk. There is no claim that he was prevented from
reporting his departure to the clerk. As an experienced
"g. Whenever upon a roll call any Senator who is
Senator, he must have known that he would be recorded
upon the floor of the Senate Chamber refuses to make
as voting in the affirmative on [*148] every "fast" roll
response when his name is called, it shall be the duty of
call for the remainder of the July 8 session day.
the Presiding Officer, either upon his own motion or
upon the suggestion of any Senator, to request the In their brief, the plaintiffs admit that the "fast" roll
Senator so remaining silent to respond to his name, and if call "is an expeditious way of handling the volume of
such Senator fails to do so, the fact of such request and legislation that comes before the Senate." On oral
refusal shall be entered in the journal, and such Senator argument of the appeals, the plaintiffs conceded that on
shall be counted as present for the purpose of these facts, so far as the "fast" roll call is concerned, the
constituting a quorum." recording of Senator Nolan's vote as affirmative was not
constitutionally impermissible. Accordingly, the issue of
The rules provide no means for determining when a
whether a "fast" roll call violates the mandate of the
Senator is "present" or "upon the floor of the Senate
[***21] Constitution is not before us and we express no
view as to whether the Senate rules and custom as
[*147] The Senate rules generally do not set forth embodied in the use of the "fast" roll call voting
basic parliamentary rules and details. When the procedure conforms to the constitutional prescription
Legislature has not adopted rules for a particular subject (see NY Const, art III, § 14; see, also, People ex rel. Scott
or purpose, it "'is governed by the generally accepted v Supervisors of Chenango, 8 NY 317, 328).
rules of parliamentary procedure which flow from
As represented at oral argument by the plaintiffs, the
general principles of common law'" ( Matter of Board of
gravamen of their complaint with respect to the third
Educ. v City of New York, 41 NY2d 535, 541, n 3, supra,
cause of action is that the Senate rules and custom were
quoting from Matter of Anderson v Krupsak [***19] ,
not observed in that Senator Ohrenstein failed to have
40 NY2d 397, 405). Under recognized principles of
Senator Nolan marked "excused because of being in the
parliamentary law, where "it appears that a quorum was
hospital" for any votes taken on the evening of July 8 or
present at a certain time, and it does not appear that after
on the following day.
that time there was an adjournment, it will be presumed
that the quorum continued to be present" (67A CJS, While there is a dispute as to the content of their
Parliamentary Law, § 6, p 619; see Robert's Rules of conversation, it is agreed that Senator Ohrenstein had a
Order [newly revd ed], § 39, p 296). By long-standing telephone conversation with Senator Nolan at his home
Page 6
89 A.D.2d 138, *; 454 N.Y.S.2d 993, **;
1982 N.Y. App. Div. LEXIS 17981, ***

the evening of July 8. For the purposes of this argument, The verified answer contains general denials and
we assume, as Senator Nolan contends, that there has asserts, inter alia, as an affirmative defense that chapter
been an unwritten custom in the Senate for a member to 485 is a constitutional exercise of the taxing authority of
arrange for an excused appearance through the office of the Legislature. The defendants' cross-moved pursuant
the Minority Leader, Senator Ohrenstein, that Senator to CPLR 3212 for summary judgment, inter alia, on the
Nolan informed Senator Ohrenstein that he had [*150] ground that the complaint fails to state a cause of
registered with the clerk on July 8, and that [***22] action. The supporting papers include an affidavit by
Senator Ohrenstein agreed to arrange to have him David Z. Plavin, acting executive director of the MTA,
marked "excused" but neglected to do so. and a copy of the "comprehensive plan and action
program" prepared by the MTA's predecessor, the
Courts may not "impeach the validity of [a] law, by
Metropolitan Commuter Transportation Authority, at the
showing that in its enactment some form or proceeding
request of former Governor Nelson A. Rockefeller and
had not been properly followed or adopted by the
submitted to him in February, 1968. Mr. Plavin
legislature, the supreme law-maker" ( People v Devlin,
describes in some detail the various transportation
33 NY 269, 283). "[Respect] for the basic policy of
services provided by the MTA in Orange and Suffolk
distribution of powers in [*149] our State government,
Counties. For example, in Orange County the MTA
and the exercise of a proper restraint on the part of the
operates the Port Jervis line, for which new cars and
judiciary in responding to invitations to intervene in the
locomotives have been acquired, and Stewart Airport, in
internal affairs of the Legislature as a co-ordinate branch
which MTA has invested in excess of $ 30,000,000 in
of government [are most important] -- 'it is not the
capital improvements, and in Suffolk County, the MTA
province of the courts to direct the legislature how to do
operates the Long Island Railroad to Huntington,
its work'. ( People ex rel. Hatch v Reardon, 184 NY 431,
recommended improvements to which have been
442; cf. Norwick v Rockefeller, 33 NY2d 537.)" ( New
[***25] substantially completed, and Republic Airport.
York Public Interest Research Group v Steingut, 40
Since the acquisition of the two airports, the MTA has
NY2d 250, 257.) Judicial review of every internal dispute
operated them and funded their operating deficits, which
between the members of the Legislature "would frustrate
typically exceed $ 1,000,000 per year.
the legislative process and violate" the constitutional
principle of separation of powers ( Matter of Anderson v In their brief to this court, the plaintiffs urge that the
Krupsak, 40 NY2d 397, 403, supra). defendants' cross motion, while nominally one for
summary judgment pursuant to CPLR 3212, is
Accordingly, we hold that chapter 485 of the Laws
essentially a motion pursuant to CPLR 3211 (subd [a],
[***23] of 1981 was validly enacted, the plaintiffs'
par 7) addressed to the sufficiency of the pleadings and
motion for summary judgment on the third cause of
that the supporting papers are at best conclusory and
action should be denied, and judgment should be granted
inaccurate. The plaintiffs note that neither Stewart nor
defendants on that cause of action.
Republic Airport is included as a recipient of any portion
We turn now to the other constitutional issues raised of the funds appropriated by chapter 485.
by the plaintiffs. The crux of the allegations in the first
The plaintiffs, citing Matter of Long Is. Light. Co. v
two causes of action pertains to the disproportionate
State Tax Comm. (45 NY2d 529, 535-536), concede that
benefits received by the residents of Orange and Suffolk
"a legislature having the power to impose taxes has wide
Counties. Thus it is alleged, inter alia, that only a small
latitude in creating districts and zones of taxation and * *
percentage of the residents of these counties utilize MTA
* even wider latitude in creating various classifications
facilities; that the primary purpose of the new tax is to
for purposes of taxation [and] * * * that even a flagrant
fund a deficit in the operation of those MTA facilities
uneveness [sic] in the application of a tax is of virtually
which "primarily * * * benefit the occupants, residents
no moment and will not form the basis of a successful
and business inhabitants of New York City"; [**1000]
attack upon the tax." However, they claim that they
that the ratio of taxes generated in each county within the
[***26] are not arguing disparate benefit. They call
MCTD will vary because of geographic location,
attention to the allegations in the complaint to the effect
population and economic base, will bear no relation to
that "the taxes imposed by Chapter 485 will be at
the services rendered within each county and will result
different ratios amongst [*151] all the counties within
in Orange and Suffolk Counties being "heavily"
the MTA transportation district" and are based "only
discriminated against; and that the statutory scheme
upon a geographic distinction that is capricious and
based on geographic location has no justification, is
arbitrary, devoid of any reasonable consideration of
arbitrary and capricious and bears no reasonable relation
differences between or policy extending to the several
to any [***24] legitimate State objective.
MTA commuter district counties." They also contend
that Mr. Plavin's supporting affidavit on the cross motion
Page 7
89 A.D.2d 138, *; 454 N.Y.S.2d 993, **;
1982 N.Y. App. Div. LEXIS 17981, ***

does not address or deny these allegations. "While that there are significant links between these two
distinctions based on geographical areas are not, in and counties and the rest of the metropolitan area in which
of themselves, violative of the Fourteenth Amendment, the MTA operates * * * it is undisputed that residents of
Salsburg v. Maryland, 346 U.S. 545 * * * a state must these two counties have long had an opportunity to
demonstrate, if it wishes to establish different classes of participate, in MTA's policy deliberations. Public
property based upon different geographical localities -- Authorities Law § 1263(1) (a)." That the crux of the
e.g., rural areas as opposed to urban areas -- that the plaintiffs' complaint is the disproportionate benefits
classification is neither capricious nor arbitrary but rests received by the users of the MTA [***28] facilities in
upon some reasonable consideration of difference or Orange and Suffolk Counties is demonstrated by the
policy. State Board of Tax Comm'rs of Indiana v. following statement in the plaintiffs' brief: "In short, the
Jackson, 283 U.S. 527, 537" ( Weissinger v Boswell, 330 Plavin affidavit does not address at all the internal
F Supp 615, 623-624; see, also, San Antonio School disproportional [*152] or disparate effect of the sales
[***27] Dist. v Rodriguez, 411 U.S. 1, 28, n 66). tax among the several counties within the MTA
commuter district. That and that alone is the central
[**1001] Even if we take judicial notice of the
theme of the plaintiffs' complaint."
economic, geographic and demographic differences
between Orange and Suffolk Counties and the other The remaining grounds on which the validity of
counties within the MCTD, these differences do not chapter 485 is attacked are therefore unavailing. The
demonstrate that the challenged tax scheme does not pass defendants' cross motion for summary judgment should
constitutional muster. be granted and chapter 485 of the Laws of 1981 declared
to have been duly enacted into law and to comply with
The cases on which the plaintiffs rely are inapposite
the equal protection clause of the Fourteenth Amendment
on their facts ( Tax Comrs. v Jackson, 283 U.S. 527,
to the Federal Constitution.
supra; McCarthy v Jones, 449 F Supp 480; Weissinger v
Boswell, supra). As the defendants correctly state: "It is In view of our determination, we need not decide
undisputed that there are MTA services and facilities in whether the plaintiffs' application for class action status
those counties, utilized by residents of those counties, was properly denied. However, if we were to reach that
that are either directly or indirectly subsidized with the issue, we would affirm for the reasons stated by Special
revenue raised by the sales tax increase. It is undisputed Term.
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Time of Request: Tuesday, June 30, 2009 17:40:51 EST

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